Saturday, January 30, 2010

Adam Walsh Act: Failed Promise of Federalism

Social Science Research Network: The Adam Walsh Act and the Failed Promise of Administrative Federalism.
by Wayne A. Logan, Florida State University College of Law
George Washington Law Review, Forthcoming

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed to date on state influence on agency rule-making, and provides an important cautionary tale for future agency-based criminal justice mandates that will likely come to pass.

Two Teens Charged With Child Pornography After Sexting Two Teens Charged With Child Pornography After Sexting.

Two students, ages 13 and 14, are charged with child pornography after they allegedly sent a naked picture of another student from their cell phones. Police said a 14-year-old boy at Chinook Middle School in Lacey received a cell phone picture from his 14-year-old girlfriend showing her naked. When the boy and girl broke up, the boy allegedly started forwarding the image to other students Monday night. A 13-year-old girl is also charged for allegedly playing a role in spreading the naked photo to other students. Another girl could also be charged.
If the teens are convicted, they could spend up to 30 days in detention and they would be forced to register as sex offenders.

WATCH IT: If Convicted, Teens Would Register As Sex Offenders

High Court May Review Pa. County's Predator Law High Court May Review Pa. County's Predator Law

Pittsburgh (AP) ― A federal court appeals court has asked the PA Supreme Court to review a western Pennsylvania county ordinance that limits where registered sex offenders may live.

The 3rd U.S. Circuit Court of Appeals wants the high court to determine whether Pennsylvania's Megan's Law — which requires some sexual predators to register with police — pre-empts the county ordinance. A federal judge in Pittsburgh last year struck down the Allegheny County ordinance, saying the statewide law invalidates it.

The ordinance aims to ban sex offenders from living within 2,500 feet of schools, licensed child care facilities, community centers and public parks. The American Civil Liberties Union says sex offenders would have virtually no place to live in the county under the ordinance.

CA High Court: Jessica's Law May Violate Constitution

LATimes: Constitutionality of 'Jessica's Law' questioned.

The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection.

The ruling, written by Justice Carlos R. Moreno, did not strike down the measure, Proposition 83, also known as "Jessica's Law."
Instead, the court said a fact-finding hearing must be held to determine whether valid reasons exist for treating sex predators differently from others subject to civil confinement, such as mentally disordered offenders.

Proposition 83 increased penalties for repeat sex offenders, prohibited them from living near schools and parks, and changed the law to permit their indefinite confinement to mental institutions, instead of two years with the possibility of extensions.

Richard McKee, a convicted child molester, challenged his confinement on several constitutional grounds, but the court found that only his equal protection argument had merit. The majority said the state must provide "some justification" for creating greater obstacles for sex predators to win their freedom than for severely mentally disordered offenders who commit crimes but serve their terms in mental institutions. Sexual predators must be shown to "bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society," Moreno wrote.

The majority said the state can provide its justifications in a hearing before a trial judge.
Justice Ming W. Chin, joined by Justice Marvin R. Baxter, dissented.

CA Court Ruling Expected on Homeless Sex Offenders Supreme Court Decision Expected Monday On Homeless Sex Offenders.

Homeless sex offenders in San Francisco will find out whether they'll be able to finally move indoors on Monday. The state Supreme Court will issue its decision about the constitutionality of the Jessica's Law restrictions banning sex offenders from living 2,000 feet from a school or park -- which, in San Francisco, have forced nearly all paroled sex offenders into homelessness.

SF Weekly ran a cover story about the conundrum last month: Sex offenders paroled to the city after voters passed Jessica's Law in November 2006 must live in enforced homelessness because there are virtually no areas in the dense city that are compliant with the restrictions.

San Francisco attorney Ernest Galvan filed suit against the law on behalf of four sex offenders, arguing the unconstitutionality of forcing people onto the streets. He charged that the foot restrictions were a violation of the ex post facto statute that a person can't be retroactively punished by law that wasn't on the books when he or she committed the crime.

All of Galvan's defendants committed their crimes before the passage of Jessica's Law, and were paroled for other non-sex-related crimes. But their sex offender status came back to haunt them: Since the people were released after voters approved Jessica's Law, they must abide by its foot restrictions on where they can live. Currently only the California Department of Corrections and Rehabilitation is enforcing the law's foot restrictions for parolees. The San Francisco Police Department does not enforce it on registered sex offenders who have been released from parole.

Monday's likely decision will be the second in less than a week on challenges to Jessica's Law. In a separate ruling Thursday, the court questioned the constitutionality of the law's provision permitting the state to commit prisoners deemed sexually violent predators to a state mental hospital for an indefinite stay after their release from prison. (see above post)

Prior to the enactment of Jessica's Law, sexually violent predators could only be confined to the hospital for two two-year terms following their prison sentence -- and only if the state could prove in court the convicts are still a danger to society. Now the person must stay in the hospital until it can be proven he or she no longer meets the definition of a sexually violent predator. The state supreme court remanded that case back to a San Diego Superior Court judge.

Friday, January 29, 2010

The Police Want to Talk to You, What Do You Do? The police want to talk to you, what do you do?

"Don't Talk to the Police by Professor James Duane."
James Duane explains why innocent people should never talk to the police.

"Don't Talk to the Police" by Officer George Bruch.
George Bruch from the Virginia Beach police department responds to Professor James Duane's presentation on why innocent people should never talk to the police.

Thursday, January 28, 2010

100 Yr Old Sex Offender Jailed for Refusing Treatment 100-year-old sex offender sent back to jail.

Theodore A. Sypnier, the 100-year-old sex offender, has again been put behind bars for failing to comply with parole mandates requiring him to participate in mental health treatment. Authorities on Monday said Sypnier is being detained in the Erie County Holding Center in downtown Buffalo for failure to participate in sex offender counseling aimed at trying to get him to acknowledge his transgressions.

The judge will determine what action to take on the violation, which could include a return to prison.
At this point, Sypnier's parole will be completed by May 2012. If he lives, he will then be considered a free man, though he will have to register and periodically report his most current address to the state's sex offender registry. But it is possible that he could be considered for proceedings under the state's indefinite civil confinement law.

Hide Your Children! "Sex Offender" Pete Townshend is Coming to Super Bowl Hide Your Children! "Sex Offender" and Sometimes Musician Pete Townshend is Coming for the Super Bowl.

This isn't sensationalist at all. No, the Brevard-based sexual predator watchdog group "Protect Our Children" is being entirely reasonable. If you disagree, you're most likely a pedophile -- or Roger Daltrey.

The Who's Pete Townshend is coming to South Florida to perform at the Super Bowl. In 2003, the guitarist was arrested in England and accused of searching for child sex photos. He claimed he was researching a book, and was never convicted, but his name was added to the country's sex offender registry. So "Protect Our Children" is sending out 1,500 of the above postcards to area residents warning them that "Townshend will be at large in Miami on February 7" -- because he may escape from the stadium to go trolling for your children in nearby parks.

Wednesday, January 27, 2010

NH Bill to Create Internet Murderer Registry Bill Would Require Registration For Child Killers -Those Convicted Of 1st- Or 2nd-Degree Murder Would Have To Register.

Lawmakers in Concord are debating a bill that would require anyone convicted of first- or second-degree murder of a child to register on the state's public safety list. Backers of the bill said it would work like the sex offender registry.

"The community will become aware that they're there, and they can let their citizens know to avoid this area, particularly if you have children," said Rep. Fran Wendelboe, R-Belknap. Several states have already passed similar laws. If passed in New Hampshire, it would become effective immediately.

We warned about this long ago. Once our society allows sex offenders to be publicly shamed online, it emboldens government to list many other categories of offenders on Internet registries. Other offenses, including murder, drunk driving and animal abuse have already been targeted in other states. This is the classic "slippery slope" dynamic in progress.

Tuesday, January 26, 2010

FL City Council Restricts Where Sex Offenders Live Bonifay Council proposes restricting where sex offenders live.

Bonifay City Council approved first reading of an ordinance restricting where adjudicated sex offenders and sexual predators can live in the city. Action was taken at Monday’s regular meeting of city council.

Under Ordinance 366 sexual offenders and predators involved in an offense where the victim was less that 16 years of age would be restricted from living with 2,500 feet of “any school, designated public school bus stop, child care facility, family day care home, park, playground or any other place where children regularly congregate.” The latter could include the recreation center as an example.

In other words, it bans living in most parts of the city.

Penalties would apply to offenders that move to the City after the ordinance goes into effect. Final passage of the ordinance is expected at the Feb. 8 regular meeting. Landlords are also subject to penalties if they knowingly rent property to offenders once the ordinance goes into effect. Taylor said that offenders already living inside City limits must be “grandfathered in” under state law.

Exceptions are also granted if the offender was a minor when they committed the offense, if they are currently a minor or if the school, designated public school bus stop, child care facility, family day care home, park, playground or any other place where children regularly congregate was opened after the person established a permanent residence.

Internet Radio -Collateral Damage Series Part 4

Hosted by: RealityUSA
Title: Collateral Damage Series Part 4
Time: 01/27/2010 08:00 PM EST
Episode Notes: Please join us this Wednesday as we here at ARC TalkRadio welcome Sara to the show. Sara, has found herself as the mother of a former offender when her young son got tangled up in a internet sting and was forced to register, which in turn destroyed his life and that of her family. This family has a unique story as Sara comes from another country, as a child, and believed in the American dream of freedom and constitutional rights. Now, she finds herself angry, bitter and disfranchised by our government. Not only will Sara discuss the registry laws, how it effects her son, but she wants to respond to Attorney General of Nebraskas radio interview. It takes much courage to come forth and share ones story and pain so please join us in support of Sara as she discusses her own family's plight. ARC Hosts, Kevin and Mary

Sex Offender Arrested for Drawing on Driver License Sex offender tries to hide status on driver's license.

Crestview - A man pulled over for a traffic stop on Jan. 8 was arrested after an Okaloosa County Sheriff's Office deputy noticed that there was a bright red line in the middle of his driver's license.

After John William Redmond, who is 42, was arrested for DUI, the deputy noticed that the red line smeared. When it was wiped off, the words "Criminal Sex Offender" were revealed, according to his arrest report.

He was charged with fraud for trying to hide his status as a sex offender.

MD Senate Bill to Revamp Sex Offender Registration Politics: Senate Democrats offer 'progressive' agenda.

The Democratic leadership of the Maryland Senate announced a wide-ranging session agenda Tuesday morning that includes expansion of sex offender registration requirements:

* Sex Offenders -- Registry Information Expansion and Interstate Data Sharing (Senator DeGrange). The bill would expand information contained on the Maryland Sex Offender Registry as to the offender (palm prints, travel documents, professional licensure information) and require links and information contained on other states' registries to connect to the Maryland site. Many of the bill's requirements would ensure compliance with the federal Adam Walsh Act, including quarterly registration instead of biannual registration for the most dangerous offenders, and retroactive application to instances before the current 1995 date.

Readers should contact Sen. DeGrange to educate him on the fact that retroactive punishment under the law is unconstitutional.

S.D. Sex Offender Registry Needs Work S.D. Sex Offender Registry Needs Work.

The South Dakota Legislature is taking an overdue look at the state’s sex offender registry law, and this will hopefully lead to some needed modifications to the system. The current sex offender registry was set up by the Legislature in 1994 and requires lifetime registration of all offenders regardless of the date of the crime, and they must re-register every six months. The law was modified in 1997 to require any juvenile age 15 or older convicted of a sex crime to sign up for the registry, which is public information and is now available online.

The intent of the law is well meaning. It was set up, according to the state, “to provide information to the public regarding offenders living within their community.” However, it was set up as a stringent, black-or-white system, creating a presumption that all sex offenders are equal in the severity of their crimes and their threats to society. It does not allow differentiation, for instance, for someone who has worked through the years to rehabilitate himself or herself and no longer poses a threat to society; or someone who was 16 and was convicted of having one-time sexual contact with a 14-year-old.

As Sen. Craig Tieszen, R-Rapid City, noted in a Senate Judiciary Committee hearing last week, the state has thrown “a wide net” over all offenders. Worse, it blinds parents from being able to distinguish if the sexual offender listed on the registry is someone who is no longer a threat or a person who may be a habitual predator. Erring on the side of caution, which anyone would do, thus creates a penalizing climate for those who have worked to right themselves.

The bills now being considered in Pierre would remove the indiscriminate blanket thrown over all offenders and grant them the potential to move to different categories. The chief bill being considered would place offenders in three different categories based on the seriousness of their crime, with tier 1 and tier 2 allowing the registered offenders to apply to a judge for removal after 10 and 25 years, respectively, based on certain qualifications, including rehabilitation. An offender in tier 3 would still remain on the registry for life.

This would modify South Dakota’s sex offender registry law to match those of many other states, including Nebraska, which has operated on a tier system for years. (Coincidentally, Nebraska just toughened its registry system, going from a two-tier system of either 10 years to life, to a three-tier system of 15 years, 25 years and life. But it still differentiates between the severities of crimes.)

There is also the issue of aligning state law with the Adam Walsh Act, a 2006 federal law that mandates a national three-tier system for sex offenders. It penalizes states that do not comply. While some people will instinctively balk at being muscled by Washington, it should not obscure the fact that our state’s registry needs modification and a sense of fairness.

Monday, January 25, 2010

Simpsons Porn Lands Man on Sex Offender List The Simpsons porn lands man on sex offender list.

This news report best demonstrates how ultimately ridiculous these sex offender registry laws have become.

An Ipswich man has only narrowly avoided jail for downloading graphic cartoon porn images featuring child characters from The Simpsons and The Powerpuff Girls television shows. The 28-year-old was handed a 12-month suspended prison sentence and is now a registered sex offender after pleading guilty in Ipswich District Court to having the bizarre images on his computer.

Police went to Kurt James Milner’s Leichhardt home on January 24, 2008 after receiving an anonymous tip-off about the disturbing material. The images depicted figures from The Simpsons, The Powerpuff Girls and The Incredibles in sexually explicit positions.

MN: Ex-Park Police Commander Accused of Abusing Boy Child porn charge against ex-Park Police commander accused of abusing boy.

Yet another member of law enforcement charged in sex offenses against minors.
The hypocrisy is astounding. See related story below: MD Police Officer Charged in Child Porn Case

A longtime college educator and former head of the Minneapolis Park Police force, already accused of sexually abusing a boy over the past several years, was also charged Monday with possession of child pornography.

William Allan Jacobs, 66, of Deephaven, is newly charged with possessing nearly 40,000 pornographic images, according to the criminal complaint. The new charge is based on evidence collected in a search of his home on Thursday. Seized were four computers, hard drives, thumb drives, 141 CDs and DVDs and the images, the complaint said.

No plea was entered. His next court appearance is scheduled for Feb. 17. Friday, Jacobs was charged with two counts of first-degree criminal sexual conduct. The charges say that the abuse started in 2007, when the boy was 12, and continued until this month.

Jacobs led the Park Police force as a captain from 1987 to 2001. An attorney, he also is on the criminal justice studies faculty at Minneapolis Community and Technical College in St. Paul, where he has taught since 1990. He also taught chemistry at the Breck School from 1973 to 1976, said Mary Healy, a school human resources official. Healy said she was not allowed to say more about Jacobs' time at the school. He joined the Park Police force as an officer in 1975. In addition, he has had a long-running affiliation with the YMCA's Camp Warren in Eveleth, Minn.

Missing Kids Center Enjoys Fed Rules Exemptions Quasi-governmental missing kids center enjoys key exemptions from federal rules.

In many ways, the National­ Center for Missing and Exploited Children is a quasi-government agency. Mandated by Congress, the center has access to the FBI's missing, wanted and unidentified persons files. It operates tip lines for the Justice Department and Immigration and Customs Enforcement. It gets more than half of its money from U.S. taxpayers.

Yet the Virginia-based center, with regional offices in Florida and three other states, is a private nonprofit organization exempt from federal salary caps. And that has enabled the center's president, Ernie Allen, to command a salary among the highest in the nonprofit world.

In 2008, the latest year for which records are available, Allen made $511,069 as head of the center and its international affiliate. He also received $787,126 in deferred compensation and underfunded retirement benefits, as well as $46,382 in nontaxable benefits — a total of $1,344,567.

Allen's base salary was higher than that of the top executives of two other nonprofits — the American Red Cross and the Smithsonian Institution — that also get substantial funding from the U.S. government. Both have budgets many times greater than that of the missing children's center.

Allen's compensation "does appear quite high,'' says Daniel Borochoff, president of the American Institute of Philanthropy.
Of the more than 500 nonprofits the institute rates, Allen's total compensation ranked third-highest — exceeded only by that at the Boy Scouts of America ($3.97 million) and Memorial Sloan-Kettering ($3.67 million), one of the world's top cancer centers.

"I think it doesn't pass the smell test with donors," Sandra Miniutti, Charity Navigator's vice president, says of Allen's compensation. "It's very hard for people to wrap their arms around huge salaries, especially right now when we're in a recession.''

The center's 350 employees include 11 who are paid more than $125,000. And in 2006 and 2007, the center paid medical claims totaling $76,572 for co-founder John Walsh, whose son Adam was murdered in South Florida in 1981. Although Walsh is no longer an employee, his wife is an unpaid board member and their family is covered by the center's health plan. Walsh, host of America's Most Wanted, still acts as a spokesman for the center .

"I was blown away by the national center,'' said DCF Secretary George Sheldon, who has visited the Arlington, Va. headquarters. "They have housed at the center (agents) from homeland security, the FBI, several of those kinds of entities.'' Unlike the FBI and Department of Homeland Security, the center is exempt from the Freedom of Information Act. But it should be subject to it because of its quasi-governmental status, contends a medical researcher who was labeled an "abductor'' on the center's Web site in 2005, after he left the United States with his daughter. The center is "intimately entwined with agencies of the executive branch of government,'' a lawsuit says.

Allen did not directly address the issue of whether the center should be subject to Freedom of Information queries, but said the organization "receives extensive oversight from various charity regulatory bodies.''

"If the center is going to continue playing the role it does today, there's not a question in my mind that it should be subject to accountability and transparency through the FOIA process," says Berin Szoka of the Progress and Freedom Foundation in Washington.

Another Problem With Sex Offender Lists Another Problem With Sex Offender Lists.

Color Lines has an article that highlights yet another problem with those infamous sex offender lists in some states: their use against prostitutes (and those who frequent them). The example they use is New Orleans:
New Orleans city police and the district attorney's office are using a state law written for child molesters to charge hundreds of sex workers like Tabitha as sex offenders. The law, which dates back to 1805, makes it a crime against nature to engage in "unnatural copulation"--a term New Orleans cops and the district attorney's office have interpreted to mean anal or oral sex. Sex workers convicted of breaking this law are charged with felonies, issued longer jail sentences and forced to register as sex offenders. They must also carry a driver's license with the label "sex offender" printed on it.

This, of course, means a hugely disproportionate impact on women, especially minority women:

Of the 861 sex offenders currently registered in New Orleans, 483 were convicted of a crime against nature, according to Doug Cain, a spokesperson with the Louisiana State Police. And of those convicted of a crime against nature, 78 percent are Black and almost all are women.

The law impacts sex workers in both small and large ways. Tabitha has to register an address in the sex offender database, and because she doesn't have a permanent home, she has registered the address of a nonprofit organization that is helping her. She also has to purchase and mail postcards with her picture to everyone in the neighborhood informing them of her conviction. If she needs to evacuate to a shelter during a hurricane, she must evacuate to a special shelter for sex offenders, and this shelter has no separate safe spaces for women. She is even prohibited from very ordinary activities in New Orleans like wearing a costume at Mardi Gras.

"This law completely disconnects our community members from what remains of a social safety net," said Deon Haywood, director of Women With A Vision, an organization that promotes wellness and disease prevention for women who live in poverty. Haywood's group has formed a new coalition of New Orleans activists and health workers who are organizing to fight the way police are abusing the 1805 law.

"What this is really about is over-incarcerating poor and of-color communities," said Rosana Cruz of VOTE-NOLA, a prison reform organization that is also a part of the new coalition.

Not every state includes prostitution as a sex offense that requires putting someone on the list. But for those that do, the result is simply undue cruelty. As if the life of a woman so desperate that she has to resort to street prostitution isn't bad enough, we need to make them suffer even more? That's barbaric.

Women and minorities better start paying attention to these sex offender banishment laws. They are coming after you !

MD Police Officer Charged in Child Porn Case Arundel officer charged in child porn case.

An Anne Arundel County police lieutenant is in federal custody on charges he received child pornography in the form of sexually explicit text messages and digital pictures sent to his cell phone by a teenage girl more than 30 years his junior.

Lt. James B. Cifala, 47, could be sentenced to between five and 20 years in prison if convicted. A detention hearing is scheduled today.

"This case is particularly disturbing because it involves an individual who had a professional duty of protecting our children," Richard McFeely, the special agent in charge of the Baltimore office of the FBI, said in a statement.

According to a redacted FBI affidavit filed, a mother and stepfather contacted the agency's Baltimore division in September, concerned that their daughter, who was born in 1993, was involved in a sexual relationship with an adult male. Text messages between the girl and a man named "Johnny," identified by agents as Cifala, are explicit. "You were great today," reads an Aug. 15 message sent from Johnny. "Sex with you is fun," the girl replied.

Between Aug. 14 and Sept. 6, 2009, there were more than 1,300 exchanges, mostly texts, between their cell phones. The girl told agents she also sent nude photos to Cifala, who is also accused of sending images of himself. Cifala made his initial appearance in Baltimore U.S. District Court on Thursday.

Anne Arundel County police spokesman Justin Mulcahey said Cifala, a 27-year member of the force, is still employed with the department. He declined to address whether he had been suspended, as was suggested in court. Department regulations allow an officer to be suspended without pay if charged with a felony. "The Police Department holds its officers to the highest ethical standards," Col. James Teare, Sr., chief of police, said.

MO Vigilante Wants Public Vote on Sex Offender Law Voters may ‘regulate’ sex offenders.

Matt Bartle doesn’t care to critique the Missouri Supreme Court’s recent ruling that two sex offender laws couldn’t apply to those convicted before the laws went into effect. Instead, the lawyer and state senator from Jackson County intends to let Missouri’s voters decide the issue — possibly as soon as November.

This month, the Supreme Court ruled that a 2008 law prohibiting registered sex offenders from handing out candy on Halloween and the 2004 law preventing convicted sex offenders from living within 1,000 feet of a school or child-care facility couldn’t apply to those convicted prior to the laws’ passage. Missouri’s Constitution contains a provision that prohibits retrospective punishment. The court interpreted that the laws added additional punishment, not regulation as prosecutors argued, on sex offenders.
So all of the sex offenders convicted prior to 2004 now can live wherever they choose in the state, at least for a few months.

Mr. Bartle, chairman of the Missouri Senate Judiciary Committee, said he believes the next step for proponents of those two laws is a constitutional amendment that would allow both laws to apply to all offenders. “Let’s just say we are not caught flat-footed here,” the Republican said. “(This) doesn’t leave us in a spot where we don’t know what to do. It’s very obvious what the next step is.”

Mr. Bartle sponsored the bill that required sex offenders to register in 2003 and saw the Halloween and 1,000-feet bills come through committee, as well. He predicts the state Legislature will pass a joint resolution during its current session, and believes the amendment could go before voters by November.

Sue Rinne, director of Buchanan County’s public defender office, said she would oppose a state amendment, though she wouldn’t side with or against either law. Instead, Ms. Rinne expressed her concern that the sex offender registry, the starting point for these restrictions, doesn’t differentiate between crimes. “There is a scale in terms of sex offense,” she said. “They are not all the same, and these statutes do nothing to address that. ... All sex offenders are lumped into this big category.”

Mr. Bartle does worry about putting the same label on all offenders — from child rapists to a 19-year-old who had consensual sex with a 16-year-old. He acknowledged that legislatures can go “way too far” with sex offender registries, and believes Missouri should be careful in the coming months to create a prudent list that doesn’t lose its meaning.

“The public is worried about the pedophile,” he said. “All we do is hurt the public if we make the list so large, it’s not really meaningful anymore. This is an area where we need to be very careful.”

Mr. Bartle said the Senate was “getting the categories right as we speak. We’ll be fine with retroactive (laws) as long as we have categories.” (Mr. Bartle, "retroactive" laws are unconstitutional ; read the Constitution!")

You can reach this pathetic Senator here:
State Capitol Building , Room 434 , Jefferson City, Missouri 65101
Capitol Phone: (573) 751-1464

Friday, January 22, 2010

Mass. AG OKs Sex-Offender Bylaw AG OKs sex-offender bylaw.

Towsend- Massachusetts Attorney General Martha Coakley's office has issued its approval of the sex-offender bylaw adopted by residents at the Special Town Meeting Sept. 1. Under the bylaw, convicted Level 2 and 3 sex offenders may not live within 1,000 feet of the public library, schools, day-care centers, parks, elderly housing facilities or places of worship. Those convicted of a sex crime against a child may not loiter within 300 feet of a park. Violations are civil matters and first-time violators must move, but the second offense carries a $300 fine, according to the by-law.

Police Chief Erving M. Marshall Jr. was pleased, but sounded a note of caution against violating a convicted sex offender's rights.
"I think we have to be careful with it," Marshall said. "I think there are issues that could be conceived as discriminatory in it, but I suggested it to protect kids and senior citizens."

The bylaw had to be crafted to allow convicted sex offenders a place to live, he said.
"We have to make sure, even though we are trying to protect citizens, you can't deny sex offenders a place to live," Marshall said.

The Planning Board reviewed Coakley's office's decision Monday, said Planning Board Administrative Assistant Jeanne Hollows.
"It's just a confirmation that the way it was voted has been approved," she said. Coakley's office has reviewed "quite a few" similar bylaws around the state in the past few years, said spokesman Jill Butterworth. "To make sure they are constitutional. Do we like this, do we not like this," she said. "We are making sure they are consistent with laws already on the books.

Residents debated the question with concerns about its constitutionality and the false sense of security it could provide before overwhelmingly adopting it by a voice vote.

The American Civil Liberties Union of Massachusetts is concerned about bylaws that limit where registered sex offenders can live, said spokesman Chris Ott. Limiting their housing could force some convicted sex offenders into homelessness and defeat the purpose of the bylaw, which is to track their whereabouts, he said. "We also don't do this for other kinds of crimes," Ott said. "We don't say people who have been in jail, for murder for instance, we don't say they can't go within a certain radius of this or that. What is it about this particular crime that inspires this, it doesn't make sense."

Bylaws that limit where convicted sex offenders can live also create a false sense of security, he said.
"Most (over 95% according to research) of these crimes are committed by people who are part of a child's life, so measures like this don't address that aspect of the issue," Ott said.

Ohio State v Roberts - Vacating Sex Offender Plea Ohio State v Roberts - Vacating Sex Offender Plea.

STATE v. ROBERTS - 2010 Ohio 156
State of Ohio, Plaintiff-Appellee, v. Scott Roberts, Defendant-Appellant. No. 92789.
Court of Appeals of Ohio, Eighth District, Cuyahoga County. RELEASED: January 21, 2010.

This is what is going to happen in courts across the nation if these retroactive laws are not repealed or ruled to be unconstitutional. Ex- sex offenders who decades ago pleaded to charges on the basis of an expectation of certain registration requirements will be heard in court to vacate their pleas. A plea bargain is a contract entered into by the State and their failure to abide by those agreements constitutes breach of contract of original plea of the offenders (As the conditions of punishment are now changed years after the plea agreement was made).



{¶ 1} Defendant-appellant, Scott Roberts ("Roberts"), appeals from his guilty plea and sex offender classification. Finding merit to the appeal, we vacate his plea and remand for further proceedings.

{¶ 2} In August 2008, Roberts was charged with four counts of unlawful sexual conduct with a minor and two counts of importuning. Pursuant to a plea agreement, Roberts pled guilty to an amended count of unlawful sexual conduct with a minor and an amended count of importuning.[ 1 ] The remaining charges were nolled. At the plea hearing in November 2008, the court stated that: "[a]s part of the plea agreement — by virtue of the plea agreement, rather, the defendant will be classified as a Tier I sex offender * * *."

{¶ 3} On January 8, 2009, the trial court sentenced Roberts to an aggregate of three years in prison and classified him as a Tier I sex offender. One week later, the trial court reconvened and changed Roberts's classification to a Tier II offender. The State noted that at the time the charges were read at the plea hearing "there was an indication that it was a Tier I offense when in actuality it was a Tier II offense."

{¶ 4} Roberts now appeals, raising two assignments of error for our review. We will discuss the second assignment of error first because it is dispositive. In this assignment of error, Roberts argues that his plea was not knowingly, intelligently, or voluntarily made because he was incorrectly advised of the applicable sex offender classification tier. He claims that he was told at the plea hearing and sentencing that he would be labeled a Tier I sex offender, but then was subsequently labeled as a Tier II offender.

{¶ 5} In support of his argument, Roberts relies primarily on State v. Oldham, Franklin App. No. 21777, 2007-Ohio-5184, in which Oldham pled no contest to rape and gross sexual imposition. The trial court sentenced him to four years in prison and advised that he would be designated as a sexual offender. When asked whether there was an agreement as to the particular sexual offender designation, the State advised the court that the particular designation "`would depend upon the report,' i.e. presentence investigation report. The trial court advised Oldham that in addition to the sexually oriented offender classification, it `could' classify him as a habitual sexual offender or it `could' classify him as a sexual predator. The trial court did not tell him that based on findings of guilty on his no contest pleas, he would automatically be designated an aggravated sexually oriented offender." Id. at ¶5.

{¶ 6} The Oldham court found that the trial court misinformed Oldham and concluded that his plea was not knowingly or voluntarily made. Id. at ¶8. See, also, State v. Trainer, Champaign App. No. 2006 CA 23, 2007-Ohio-6698 (where the court found that the defendant's plea was not knowingly, intelligently, or voluntarily made when the trial court misinformed the defendant about the availability of judicial release).

{¶ 7} The State correctly argues that the trial court was not required to advise Roberts of the sexual offender classification and registration obligations as a prerequisite to accepting his guilty plea. Roberts recognizes that the trial court was not required to advise him of the collateral consequences of his plea (the sex offender classification), but rather he claims that when the trial court chose to inform him, it was obliged to correctly inform him of the collateral consequences attendant to his plea. We agree.

{¶ 8} As the Oldham court noted, "Crim.R. 11(C) obliges the trial court to be satisfied that guilty and no contest pleas are made voluntarily and knowingly before they may be accepted. It is commendable that some trial judges go beyond the express requirements of Crim.R. 11(C) in assuring that pleas are knowingly and voluntarily made. In doing so, however, the trial judge must impart accurate information." Oldham at ¶8. See, also, State v. Johnson, Cuyahoga App. No. 92364, 2009-Ohio-5821 (where this court vacated defendant's guilty plea when the State and trial court misinformed the defendant that imprisonment was discretionary).

{¶ 9} In the instant case, a review of the record reveals the following exchanges:

Plea Hearing

Court: "My understanding is the defendant [Roberts] will be pleading guilty to Count 1 as amended, unlawful sexual conduct with a minor * * *.

"He will be further pleading guilty to an amended Count 5, importuning * * *.

"As part of the plea agreement — by virtue of the plea agreement, rather, the defendant will be classified as a Tier I sex offender, which means he must register annually for 15 years with the sheriff in the county in which he resides. Failure to register could result in additional felony charges.

"Correct statement, counsel?"

Defense Counsel: "Correct, Your Honor."

State: "Yes, Your Honor. Furthermore, in Count 1, I believe after 10 years, the defendant could petition for removal from the registration."

Sentencing Hearing — January 8

Court: "By virtue of the plea you [Roberts] are designated a Tier I sex offender, which means you will be required to register with the sheriff in the county in which you reside on an annual basis for 15 years. Failure to register will result in additional felony charges."

Post-Sentencing Hearing — January 15

Court: "Why don't you put on the record what happened at the time of the plea."

State: "At the time of the plea, your Honor, the charges were read and there was an indication that it was a Tier I offense, when in actuality it was a Tier II offense. The error would have been from the course of the plea negotiations to the entering of the plea."

* * *

Court: "Mr. Roberts, you are subject not to Tier I, but Tier II registration requirement, which means you have to register on an annual basis — strike that. You have to register for 25 years, every 180 days with the sheriff in the county in which you reside as opposed to annually for 15 years."

{¶ 10} Based on the trial judge's statements, we find that Roberts's plea was not knowingly, voluntarily, or intelligently made. Therefore, the trial court committed reversible error when it failed to impart accurate information, and, accordingly, Roberts's plea must be vacated.

{¶ 11} Thus, the second assignment of error is sustained.

{¶ 12} Given our disposition of the second assignment of error, we find the remaining assignment of error challenging the court's jurisdiction to sua sponte reclassify Roberts to be moot.

{¶ 13} Judgment is reversed, and the guilty plea is vacated. Case is remanded for further proceedings consistent with this opinion.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Blackmon, P.J. and Dyke, J., concur.

Thursday, January 21, 2010

OH: Harassing Elderly Sex Offenders in Nursing Homes

Columbus Dispatch: Bill shuts sex-offender notification loophole at nursing homes.

A loophole that allows more than 100 registered sex offenders to live in Ohio nursing homes without other residents and their families knowing about their offenses could be closed with state legislation unveiled yesterday.

Senate Bill 130, sponsored by state Sen. Capri Cafaro, D-Hubbard, would require nursing-home administrators to notify residents, family members and guardians when a Tier III sex offender -- the most serious level of offense -- intends to move to the facility. The hearing yesterday was the first on the bill.

Current law requires the notification of anybody living within 1,000 feet of a sex offender. However, the law does not require nursing-home administrators to inform residents, family or guardians.

Facilities that don't comply could be fined $100 a day per violation. Proceeds from fines would be used for adult protective services, Cafaro said.

A Dispatch computer analysis last year comparing state records of long-term-care facilities with the existing notification list found that 110 nursing-home residents and six employees were registered sex offenders. Ohio's number of offenders in nursing facilities nearly tripled in the past five years, according to Perfect Cause, an Oklahoma-based nonprofit group.

Nearly two-thirds of the offenders in nursing homes are Tier III cases, The Dispatch found. The category includes rape, sexual battery, kidnapping a minor and gross sexual imposition on a child younger than 12.

Beverley L. Laubert, the state's long-term-care ombudsman, urged state lawmakers to pass a law closing the loophole in a report released late last year.

Some argue that notification is unfair and would create unnecessary fear. Attorney General Richard Cordray supports the change, but Sen. Timothy J. Grendell, R-Chesterland, chairman of the committee in which Cafaro's bill is being heard, is skeptical. He said previously that nursing-home residents and their families can "check for themselves" to see whether an offender resides in the facility.

We urge Ohio readers to contact the above highlighted officials and their own representatives to chastise them for harassing elderly people in nursing homes:

"Re: Senate Bill 130
Stop harassing those elderly residents who have a sex offense in their history. It is more than enough to harass young and able citizens who have made such a mistakes sometime in their lives, but to carry on this harassment into a nursing home, where they live their last days, is shameful. Remember, someday you may wake to find out someone you love just became a sex offender."

Miami FL Changes Sex Offender Restrictions Miami-Dade further restricts sex-offender laws, eases others

Sex offenders and predators will be further restricted in Miami-Dade County, but possibly face lesser residency restrictions in other cities, under an ordinance passed by the County Commission Thursday. The changes to its current ordinance affect where molesters can live and loiter within the county and the 24 separate municipalities and unincorporated areas within its borders.

Amendments to the ordinance create ``child-safety zones,'' that ban sex offenders in Miami-Dade County from loitering or prowling within 300 feet of a school, day-care facility and municipal or county park. Previously, laws only restricted where molesters could live. A loophole made it legal for sex predators to be near schools and any other child facilities during the day. The amended ordinance also essentially forces other cities -- who don't opt out -- to allow sex offenders to live closer places that children congregate -- other than schools. This includes parks, bus stops and day-care facilities. All municipalities have a 90-day window in which to pass a resolution to opt out of the county's rules, thereby allowing them to pass their own laws again.

Key points of the ordinance:

• Prohibits convicted sex offenders and predators from living within 2,500 feet of a school -- only. They may live within 2,500 feet of other facilities, including and not limited to: municipal and county parks, day-care facilities and bus stops.

• Under a new ``child-safety zone'' amendment, sex offenders are banned from loitering or prowling within 300 feet of a school, municipal or county park or day-care facility.

• A sexual offender and predator is permitted in the park or day-care facility if he or she is a parent or guardian of the child.

• Any municipality may, within 90 days, have the ability to veer from the county ordinance by passing more restrictive ordinances. They are not permitted to pass less restrictive ordinances.

• Unless the suspected sexual offender flees, a law enforcement officer must give the offender or predator an opportunity to explain his or her presence and conduct before arrest.

• It is unlawful for anyone to rent a dwelling to a sexual offender or predator when the structure is within 2,500 feet of a school.

Call to Action: SORNA Teleconference Jan.22

Call to Action:
All readers are asked to call the NCSL (Glenda Riebeling) at or (303) 856-1533 before noon Friday, Jan, 22, 2010. The chances of our being allowed to participate in this conference call are slim, but it is important that these state legislators know how many of us are out here paying attention to these sex offender/SORNA/Adam Walsh Act laws. You can even call after business hours and leave a voicemail requesting to participate in the teleconference call and expressing your interest.

National Conference of State Legislators: NCSL Law and Criminal Justice Committee SORNA Teleconference - Friday, January 22, 1:00 p.m. ET

This conference call will provide an opportunity to hear from new Office of Justice Program's SMART Office (Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking) officials about SORNA compliance and will include brief updates by NCSL state issues and federal relations staff. A question and discussion opportunity will be included in the approximately one-hour teleconference.

Dial-in Instructions:

  • The conference call will start at 1:00 p.m. Eastern Time, 12:00 Noon Central Time, 11:00 a.m. Mountain Time and 10:00 a.m. Pacific Time.
  • Dial toll free (888) 437-3195 - Participants can start dialing in 15 minutes before the start of the call.
  • Announce yourself to the operator as: "A Participant in the NCSL SORNA Call" and give your "Name" and "Organization".

Various SORNA updates are available on NCSL's Adam Walsh Child Protection and Safety Act.

Please contact or (303) 856-1533 to RSVP and to let us know in advance of questions and interests of your state on this issue. Your RSVP will help us plan the conference call capacity and structure the discussion with the SMART office.

New SMART Director: Linda M. Baldwin SMART Deputy Director: Dawn Doran. SMART Policy Advisors who assist jurisdictions with implementation issues: Lori McPherson, Stephanie LoConto, Scott Matson and Allison Turkel. Policy Advisor Contacts by jurisdiction

Implementation grant funding information from the SMART Office

SD to Revise Sex Offender Registry Panel Eyes Changes In SD Sex Offender Registry.

A legislative committee has started working on eight bills that tweak South Dakota's sex offender registry law and would give some offenders the chance of eventually being removed from the list.

Chief among the changes is creating a three-tiered system that classifies offenders based on their crimes. Those convicted of the most serious crimes would be on the registry forever. Others could eventually have their name removed after a period of either 10 years or 25 years.

The Senate Judiciary Committee spent nearly two hours reviewing the bills and took some testimony Thursday, but did not vote. One of the questions is where in the tier system to place people already on the registry.

Banning Citizens from the Internet

First Amendment Coalition: Rulings banning sex criminals from internet may pave road for draconian punishments for lesser offenders.

Predictability is important when it comes to the law. Citizens should know what sort of punishment they should expect for engaging in criminal behavior. It offends our notions of justice when wildly different sentences are handed down for similar crimes.

So its more than a little disturbing that courts cannot decide whether or not an individual’s criminal acts can justify a ban from the entire Internet. While Circuit splits on the interpretation of criminal statutes are par for course (see, e.g., disagreements as to what constitutes a “violent felony” under the ACCA), the debate over Internet bans rages within one Circuit Court of Appeals. The latest ruling by the Third Circuit appears to be its third change of course in the last decade, undermining our understanding of and confidence in Internet prohibitions.

Like its sister Circuits, the Third Circuit has been struggling with the idea of banning Internet access for sex offenders. The logic goes something like this: because convicted sex offenders might use the Internet to exploit children, sentencing courts may simply outlaw their access to the Internet. Of course, an offender might also use a car or a telephone to exploit a child, but these tools haven’t come into the cross hairs just yet.

In United States v. Crandon, 173 F.3d 122 (3d Cir. 1999), the Court of Appeals imposed a three-year partial Internet ban as a condition of release for a convicted sex offender. After the offender had completed his prison sentence, he was “not [to] ‘possess, procure, purchase[,] or otherwise obtain access to any form of computer network, bulletin board, Internet, or exchange format involving computers unless specifically approved by the United States Probation Office.’” Id. at 125. The Third Circuit later rejected a lifetime, immutable Internet ban in United States v. Voelker, 489 F.3d 139 (3d Cir. 2007), and seemed to recognize that it’s not a great idea to ban access to the greatest information gathering tool the world has ever seen. Then, another panel reversed course and decided that the Internet wasn’t all that vital, upholding a ten-year Internet ban for a sex offender in United States v. Thielemann, 575 F.3d 265 (3d Cir. 2009). But then, just last Monday, the court vacated another immutable, lifetime Internet ban in United States v. Heckman, noting that even tempered Internet bans appear draconian.

So what is the take away? You can bar predatory users from using the Internet, so long as the length of the ban is quantified and the ban allows a probation officer to grant case-specific exceptions. But the court won’t say how long is too long. Perversely, the maximum amount of time marked for digital exile seems to be growing, just as the Internet is becoming more pervasive. For most users, a decade without Internet use seems like a death sentence. But so long as there is a hard number, there is light at the end of the digital tunnel, and the court won’t flinch. Further, the court has not provided any guidelines for the types of online activity that could prove acceptable, so probation officers can bar web access for any reason they choose, real or imagined. As I’ve noted previously, there is almost no incentive for a probation officer to grant access.

Now no doubt some of you are wondering why we should care about the release conditions for sex offenders. After all, these individuals have acted in such a bestial manner, why should we suffer their presence in our series of tubes? Recent developments give you plenty of reasons to care about the sentencing regimes applied to child molesters.

First off, several camps are pushing for a “three-strikes” policy for accused file-sharers. Indeed, our negotiators might be agreeing to just such a draconian measure during the secret drafting of ACTA. If you or any member of your household has ever illegally downloaded a file, be afraid. First they came for the child molesters . . .

Second, the sexting phenomenon means that a large number of adolescents might wind up being labeled sex offenders. Recently, a prosecutor sought to charge a group of high school students with the production and distribution of child pornography for taking pictures of themselves. Prosecutors are taking sexting cases very seriously. Even after a judge in a related civil suit issued an injunction barring the prosecutor from filing charges, he appealed (the Third Circuit recently heard oral argument in the case).

It is not absurd to worry that some sexters will receive partial Internet bans. I have written about one such case where a teenager lost Internet access for three years for maliciously posting nude photos of his teenage girlfriend. Furthermore, some states already have statutes that ban sex offenders from social networking sites. If the sex offender label is applied so liberally, we may electronically execute large numbers of the so-called “digital natives.”

Let’s avoid all these concerns and agree that we should not strip offenders of basic life tools. We should all worry that these Internet executions will spread.

AL Wants to Ban Sex Offenders from Social Networks Senate Bill could block sex offenders from social networking sites

Montgomery, AL (WAFF) - A bill is working its way through Montgomery to strengthen on-line laws in Alabama.
Senate Bill 48 unanimously passed the Senate Judiciary Committee Wednesday, and will now go to the Senate for consideration.

The bill could punish sex offenders with two to 20 years in prison for surfing social networking sites that are available to minors.

At this time, sex offenders must report sites and screen names they use, but
Shawn McClure, an investigator with the Madison County Sheriff's Department, says criminal penalties are limited for on-line behavior.

"I can arrest them for falsifying their sex offender registration form." McClure says he would love to see SB48 become law, but says it still presents challenges. "We're taxed with finding out what sex offenders have computers or access because just about any place anybody works and public locations have computers for people to use," added McClure.

Maine Lawmakers to Revise Sex Offender Law Lawmakers discuss sex offender law.

Augusta, Maine — State lawmakers reopened the books on Maine’s controversial sex offender law on Wednesday in the wake of a recent court ruling questioning the constitutionality of aspects of the registry.

Late last month, Maine’s highest court gave the Legislature slightly more than three months to revise a 1999 state law requiring certain sex offenders to essentially re-register with police every 90 days for the rest of their lives. The court said applying that lifetime requirement retroactively without the possibility of a waiver was unconstitutional.

On Wednesday, Attorney General Janet T. Mills told a legislative committee that the Supreme Judicial Court upheld Maine's right to maintain and publish — including on the Internet — a list of convicted sex offenders in the interest of public safety. Additionally, the law can remain in place for people convicted after the 1999 law took effect.

But Mills said the court’s ruling means the Legislature will have to take steps to address sex offenders convicted between 1982 and 1999.

Under current law, anyone convicted of a sex offense or sexually violent offense since Jan. 1, 1982, is required to register with the state. But the law has gone through various iterations in response to public outcry, national requirements and legal challenges.

The case brought before the Supreme Judicial Court involved Eric Letalien, a Dixfield man who was 19 when he was convicted of rape in 1996 for having sex with a 13-year-old girl. At the time, he was required to register as a sex offender for 15 years, but was also allowed to seek a waiver from the registry after five years. Under the changes enacted in 1999, he was required to register as a sex offender every 90 days for the rest of his life. The updated law also took away his right to ask for a waiver.

Mills presented the committee with several options. Committee members also expressed an interest in simultaneously reviewing a bill, sponsored by Democratic Rep. Anne Haskell, of Portland, that would rewrite various aspects of the law. The first option presented by Mills was to repeal the lifetime registration requirement and the mandatory check-in with police every 90 days for anyone convicted before the 1999 law. A more complicated but constitutionally sound option would be to create what Mills called a “rolling registry” where offenders would only have to follow the laws that were on the books at the time of their conviction. The state could also keep lifetime registration but allow convicted offenders the opportunity to seek a waiver from that requirement if they met certain requirements, such as no subsequent offenses.

The retroactive application of registration requirements has long been one of the most hotly debated aspects of an already controversial law. Critics argue that requiring registration for people convicted before the law took effect constitutes additional punishment on many people who served their time and have had no subsequent violations.

Zachary Heiden, legal director with the Maine Civil Liberties Union, said he believes simply eliminating the retroactivity of the law is the best and simplest option. While waivers may make sense from a policy standpoint, waivers may not meet the constitutional test, he said.

Wednesday, January 20, 2010

Iowa: Rethink Lifetime Sex Offender Supervision Panel: Rethink lifetime supervision for sex offenders.

Lawmakers should revise state law to limit the number of sex offenders subject to lifetime supervision, focusing the state's scarce resources on the highest-risk offenders, a state panel recommended Tuesday.

The move comes after a Des Moines Register probe in July showed Iowa's experiment with lifetime monitoring of sex offenders would cost at the very minimum about $168 million over the next 20 years.

Iowa's Sex Offender Research Council also advocated greater prevention efforts and additional research on how best to monitor offenders.

State Rep. Clel Baudler, who has long served on the House public safety committee, said he has heard no proposals thus far aimed at recommendations from the panel. One law change that quietly went into effect in 2006 required most sex offenders to serve "special sentences" after completing their original prison or probation sentences. The law was intended to better protect Iowa children from sexual predators, who previously could walk out of prison after serving their time with few restrictions. But since then, the number of offenders under 10-year and lifetime monitoring has grown from six in 2007 to 113 by September last year. By 2019, the number under 10-year supervision is expected to grow to 962, while those under lifetime probation will grow to 954.

The report also said lawmakers should reconsider the wisdom of subjecting juveniles to registration and residency requirements. The council said more juveniles are being adjudicated for sex offenses, but research shows only a small number commit new crimes as adults. Before revisions in Iowa's sex offender laws last summer, some 42 of the 5,041 offenders on the registry were juveniles. Prior to that, only 27 of 312 juveniles adjudicated for sex offenses from fiscal year 2006 to 2008 were placed on the registry.
The law change took away juvenile court discretion in placing juveniles 14 or older on the sex-offender registry for certain offenses. More offenders ages 14 and 15 are winding up on the registry as a result.

Read report here (PDF).

A Step Too Far in Detainment of Sex Offenders Los Angeles Times: A step too far in detainment, even for sex offenders.

The Supreme Court hears a case about civil commitment, but appears to be focusing on the wrong angle.

When we learned that the Supreme Court was reviewing a law that allows the federal government to confine prisoners indefinitely even after they have completed their prison sentences, we naturally assumed that the legal issue involved due process for the prisoner.
Unfortunately, that wasn't the case last week when the court heard arguments over the constitutionality of the indefinite detention of "sexually dangerous" prisoners. The justices' questions mostly focused on whether Washington, as opposed to the states, has the authority to do so -- not whether indefinite detention is allowable.

That issue of federalism isn't unimportant, but the more pressing question is whether civil commitment for a mental condition is being misused to force felons to remain in prison after they've completed their legal sentences.

The court gave states (including Minnesota) that power in 1997 when it ruled 5 to 4 that Kansas had properly committed a sex offender who was about to be released. The state had enacted a law allowing for the confinement in a state hospital of "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." As Justice Stephen G. Breyer noted in his dissent, the commitment in that case "was not simply an effort to commit (the prisoner) civilly, but rather an effort to inflict further punishment upon him."

Given the conventional (though disputed) consensus that all sex offenders are incorrigible, it's not surprising that officials would try to use the civil commitment process to dispense with the protections of criminal law. To convict a defendant of rape or child molestation, prosecutors must prove their case beyond a reasonable doubt. Under the law being reviewed by the Supreme Court, the government merely needed to show "clear and convincing evidence" of an inmate's dangerousness.

The federal government and the states have rightly adopted a harder line against sex offenses, and have in some cases subjected offenders -- even those who have served their sentences -- to registration and monitoring.

But using the civil commitment process to lengthen a criminal sentence is dishonest and dangerous. If the court were to strike down this section of the 2006 law, both Washington and the states might take a new look at this problem and better balance constitutional rights and public safety.

Tuesday, January 19, 2010

Nebraska John Doe on Internet Radio Broadcast Jan 20

Americans Reality Check - Talk Radio

Wednesday, January 20, 2010 (8 p.m. EST)

Dial: 724-444-7444

Code: 29521#

Live Broadcast:

Please join us this Wednesday as we here at ARC Talk Radio welcome John doe and his wife from Nebraska.

On January 1, 2010 LB285 became law which had many new requirements for all registered sex offenders. One of the most harmful and damaging requirements is all Tier 1 and 2, who were previously on a non-public registry in hands of police only, are now subjected to the Megan’s law website which will include such information as their current photo, address, criminal charge etc. Our guest John Doe , Nevada has been openly speaking out against this detrimental law which will not only effect his life but that of his family and thousands of other Nebraska former offenders.

In recent weeks he has been on the radio discussing this new law and its issues regarding the constitution as Nebraska Attorney General fights back stating this will protect Nebraska ’s children and does not violate the state and federal constitution. Here on ARC we will give John Doe the opportunity to respond to AG Bruning’s statements and discuss the issues which he feels are vital to himself and others. If you would like to listen to these interviews please visit the link at the top for ARC Talk Radio’s archive to download. We hope you will join us in support of John Doe’s fight as he has took a pro-active stand to overturn LB285, educate the public and stand by our Constitution.

To learn more on Nebraska and John doe’s fight visit:

ARC Hosts, Kevin and Mary

Soldier Charged with Child Porn for Photo of Relative

Chester County Daily Local News(Illinois): Soldier's family says pictures aren't porn.

The family of an Illinois National Guard soldier said Friday that he's been charged with possession of child pornography in Afghanistan over innocent snapshots of a 4-year-old relative in a swimsuit.

Army spokesman Lt. Mary J. Pekas declined to discuss details of the case or evidence against Miller. She said the charge is punishable by up to 10 years in prison.

"Spec. M__ is currently on active duty and assigned to Headquarters and Headquarters Co., 82nd Airborne Division, pending the conclusion of the investigation and any potential legal proceedings," the Army's media center in Bagram, Afghanistan, said in a brief, unsigned e-mail statement. The Army won't discuss the case with the family. But the soldier's father said his son has told him the charges stem from a handful of photos of the girl that the soldier's mother e-mailed to ease his homesickness.

The pictures show the girl in a swimsuit playing in a pool and sitting on B M___'s pickup truck, according to the family. A small portion of one of the girl's buttocks is visible in one, his father said.

The M___ family say their son became close to the little girl after she was diagnosed with a serious illness while her own father was away for military training. The pictures were taken by the family.

Monday, January 18, 2010

SORNA Teleconference Friday Jan.22

National Conference of State Legislators: NCSL Law and Criminal Justice Committee SORNA Teleconference - Friday, January 22, 1:00 p.m. ET

This conference call will provide an opportunity to hear from new Office of Justice Program's SMART Office (Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking) officials about SORNA compliance and will include brief updates by NCSL state issues and federal relations staff. A question and discussion opportunity will be included in the approximately one-hour teleconference.

Dial-in Instructions:

  • The conference call will start at 1:00 p.m. Eastern Time, 12:00 Noon Central Time, 11:00 a.m. Mountain Time and 10:00 a.m. Pacific Time.
  • Dial toll free (888) 437-3195 - Participants can start dialing in 15 minutes before the start of the call.
  • Announce yourself to the operator as: "A Participant in the NCSL SORNA Call" and give your "Name" and "Organization".

Various SORNA updates are available on NCSL's Adam Walsh Child Protection and Safety Act.

Please contact or (303) 856-1533 to RSVP and to let us know in advance of questions and interests of your state on this issue. Your RSVP will help us plan the conference call capacity and structure the discussion with the SMART office.

New SMART Director: Linda M. Baldwin SMART Deputy Director: Dawn Doran. SMART Policy Advisors who assist jurisdictions with implementation issues: Lori McPherson, Stephanie LoConto, Scott Matson and Allison Turkel. Policy Advisor Contacts by jurisdiction

Implementation grant funding information from the SMART Office

Sex Offender Laws & the Ex Post Facto Clause

Kansas Defenders : Sex Offender Laws & the Ex Post Facto Clause.

During the last year, there have been numerous challenges around the country to the retroactive application of sex offender laws. I’ve listed a few of the notable cases below where courts have held that the retroactive application of these laws constituted unconstitutional ex post facto punishment. I also discuss the case of Carr v. United States, currently pending in the U.S. Supreme Court, which involves an Ex Post Facto Clause challenge to the retroactive application of the Sex Offender Registration and Notification Act (SORNA).

Hopefully, these cases will provide some assistance for those of you currently litigating similar issues in Kansas. And of course, if you're not litigating these issues, you should be. More on that in a later post.


Earlier this week, the Missouri Supreme Court held that laws regulating where sex offenders live and what they do on Halloween cannot apply to those convicted before the laws took effect. Here is the court’s opinion, and here is a KC Star article on the case.


As explained here, a federal district court judge enjoined part of Nebraska’s new sex offender law, holding that Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences:

(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and

(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

The court held:

[F]or offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”

Here is the full text of the judge’s order. Thanks to Doug Berman for the tip.


As detailed here, in State v. Letalien (2009), the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. The Maine Supreme Court held that the change in the registration law violated the US Constitution’s prohibition against ex post facto punishments, noting that the Federal and Maine Constitutions provide the same Ex Post Facto protections.

Thanks to Gideon and Meryl Carver-Allmond for the tip on this one.


In Wallace v. State (2009), the Indiana Supreme Court held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the ex post facto clause of the Indiana Constitution.


In Kentucky v. Baker (Oct. 1, 2009), the Kentucky Supreme Court held that KRS 17.545, which restricts where registered sex offenders may live, could not be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. The court noted that the retroactive application of the statute was an ex post facto punishment, which violated Article 1, Section 10 of the United States Constitution and Section 19(1) of the Kentucky Constitution.

Ninth Circuit

The Ninth Circuit Court of Appeals declared in U.S. v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders:

We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.

Upcoming SCOTUS decision

In Carr v. United States, Docket No. 08-1301, the US Supreme Court will soon consider an ex post facto challenge to SORNA. Oral argument is scheduled for February 24, 2010. The issue to be decided is:

Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Here is a nice amicus curiae brief (written by Doug Berman, Wayne Logan, and Corey Yung) that argues that SORNA violates the Ex Post Facto Clause of the U.S. Constitution.

Don't forget Ohio, where there are four consolidated cases before the Ohio Supreme Court. Oral Arguments were heard on Nov, 4, 2009 and decisions are expected by Spring 2010. Read about the cases here:
and here: